580 GAINES, C. J. In this case, a question is certified for our determination which is thus stated by the court of civil appeals for the second supreme judicial district:

"This suit was brought by the appellee against appellant Burnett to recover damages in the sum of one hundred and twenty-nine dollars for the alleged conversion of twenty-six hogs belonging to appellee, the suit originating in the justice court and being tried on appeal in the county court, resulting in a judgment there for one hundred and twenty-five dollars, from which this appeal is prosecuted. Upon conclusions noted, the judgment was affirmed in this court January 7, 1899, Hunter, J., dissenting, and the case is now pending before us on motion for rehearing.

"At the suggestion of appellant, in view of the dissent, we deem it proper to certify to your honors for decision, as provided in article 1043, the controlling question in the case, which is, whether, upon the facts below stated, appellant was liable for the acts of one Williams in penning and hauling the hogs. from appellant's ranch in Wichita county, Texas, across Red river into the Indian Territory, a distance of about twenty-five miles, and unloading them there at appellant's hog ranch?

"Williams was in charge of appellant's farm in Wichita county, and was appellant's boss on the farm, but not on the hog ranch, and he had no express authority from appellant to haul the hogs from the farm to the ranch. The hogs, however, had frequently entered the farm inclosures, destroying and wasting more or less corn belonging to appellant, and had been several times penned at the instance of Williams, to prevent damage to the crops, who as often notified appellee of such facts, requesting him to take the hogs away, but though he did take them away, he did not keep them up, as was the custom of the neighborhood, but permitted them to run at large. Upon being informed by Williams that the hogs were eating up the corn, appellant instructed Williams to keep them out, but did not 'give him any special instructions further than to keep them out.' He did not tell him to keep them out if he had to kill them, but did tell him that if appellee did not keep his hogs out and if he (appellant) had to run after them like Williams had to do, he (appellant) would kill them. The inference from the facts proven was irresistible that Williams, in removing the hogs from the farm to the hog ranch, was doing it as a means of keeping them out. of the farm inclosures, the means previously tried proving unavailing, and that he was not acting in his own interest, except

AM. ST. REP., VOL. LXXI.-56

possibly to rid himself of the annoyance, but solely for the benefit of appellant.

"The question certified is whether, upon this state of case, Williams 590 was acting within the scope of his authority and in furtherance of appellant's business; the errors assigned to the rulings on the trial being probably well taken unless he was so acting within the scope of his authority, but otherwise not well taken: Mechem on Agency, sec. 740; International etc. Ry. Co. v. Cooper, 88 Tex. 607, and cases there reviewed.

"The dissenting view of Justice Hunter upon this question is thus stated by him: 'I am also of opinion that the special charges asked by appellant, Nos. 3 and 8, should have been given, and, therefore, I think the fifth and sixth assignments should be sustained, and that a new trial should have been granted, because the verdict of the jury was not sustained by the evidence. I base this last conclusion upon the ground that when Williams, Burnett's farm boss, loaded up the appellee's hogs and carried them out of the state into the Indian Territory, he committed a trespass by converting them to his own use, and that Burnett's orders to him to keep the hogs out of the field did not authorize him to do that unlawful and tortious act. It may be that his language would have authorized Williams to kill the hogs, and I believe that if Williams had killed them Burnett would have been liable, because he had, in effect, I think, expressly authorized him to do so. But a man cannot be convicted or held liable for one offense or tort committed by his servant which he did not advise or authorize, simply because he had authorized or advised him to commit some other one which was not committed. It is clear to me that the judgment in this case ought to be reversed, on the ground mainly that the agent, in carrying the hogs out of the state, acted beyond the scope of his authority and did an unlawful and tortious act, the authority for which could not be implied from the orders given by Burnett.""

It being a matter of common knowledge that corn cannot be raised in a field to which hogs have access, we are of the opinion that the manager of the farm had implied authority to prevent their encroachment upon the crop. It was his duty to keep the hogs out of the field, provided it was practicable to do so with reasonable labor and expense and by lawful means: International etc. Ry. Co. v. Anderson, 82 Tex. 516, 27 Am. St. Rep. 902. It follows, as we think, that the act of Williams was within the scope of his employment, unless it be the law

that the servant is to be deemed to act in excess of his authority whenever he resorts to an illegal act to further the business intrusted to him by his master. But such is not the law: International etc. Ry. Co. v. Cooper, 88 Tex. 607. In the case cited, the court quote with approval the following propositions laid down in the case of the same appellant against Anderson, cited above: "To hold the master liable for the act of his servant, it is not necessary that the servant should have the authority to do the particular act. The act of the servant may be contrary to his express orders, and yet the master may be liable. But the act must be done within the scope of the general authority of the servant. It must be done in furtherance of the master's business, and for the accomplishment of the object for which the servant is employed. For the mode in which the servant performs the 591 duty he is engaged to perform, if wrongful and to the injury of another, the master is liable, although he may have expressly forbidden the particular act."

As we deduce from the statement accompanying the question, the court of civil appeals find in effect as facts that Williams removed the hogs for the purpose of keeping them out of the field, and that in doing so he was acting solely in the interest of his employer. Such being the facts, we are of opinion that in legal contemplation he acted within the scope of his authority and in furtherance of appellant's business. Our opinion will be so certified.

MASTER AND SERVANT-LIABILITY FOR UNAUTHORIZED ACTS OF SERVANT.-A master is liable for the willful and wrongful act of his servant directly within the scope of his employment, though not sanctioned nor ratified by the master: Bryan v. Adler, 97 Wis. 124. 65 Am. St. Rep. 99. When a servant performs the duty for which he is engaged in a wrongful manner, and to the injury of another, the master is liable, although he may have expressly forbidden the particular act: International etc. Ry. Co. v. Anderson, 82 Tex. 516, 27 Am. St. Rep. 902, and note; Stephenson v. Southern Pac. Co., 93 Cal. 558, 27 Am. St. Rep. 223; Ritchie v. Waller, 63 Conn. 155, 38 Am. St. Rep. 361, and note.

HUTCHESON V. STORRIE.

[92 TEXAS, 685.]

MUNICIPAL CORPORATIONS-STREET IMPROVE MENTS CONSTITUTIONAL LAW.-A provision in a city charter authorizing the improvement of streets at the cost of abutting property, in proportion to frontage, without regard to special benefits to the property, is unconstitutional and void.

MUNICIPAL CORPORATIONS-STREET IMPROVE MENTS CONSTITUTIONAL LAW.-The state legislature cannot authorize a municipal corporation to assess upon abutting property the cost of street improvement or public improvements in a sum materially exceeding the special benefits which that property may derive from the work.

MUNICIPAL CORPORATIONS-STREET IMPROVEMENTS-CONSTITUTIONAL LAW.-The state legislature cannot authorize a municipal corporation to assess upon abutting property the cost of street or public improvement, without regard to benefits derived, and make such assessment conclusive upon the owner without an opportunity to contest the question of benefits. Such an assessment is null and void as a whole, and not merely as to so much thereof as may be shown to be in excess of the benefits received.

MUNICIPAL CORPORATIONS-STREET IMPROVEMENTS-ASSESSMENT-ESTOPPEL.-A person owning property abutting upon a street is not estopped to deny the validity of an assessment for street improvements, when such assessment is made without any fair opportunity given to such owner to contest its correctness.

MUNICIPAL CORPORATIONS STREET IMPROVEMENT ASSESSMENT — ESTOPPEL.-The failure of a person who owns property abutting on a street to appear when opportunity is afforded to contest the validity of an assessment for street improvement, in default of which a statute provides that he shall be estopped from contesting the validity of such assessment, does not estop him from showing that it is invalid, because the statute authorizing it is unconstitutional in this, that it authorizes such assessment in a sum materially exceeding the special benefits which such property can derive from the improvement.

CONSTITUTIONAL LAW.-STATUTES CANNOT VALIDATE BY ESTOPPEL an act that they are forbidden by the state `constitution to authorize.

MUNICIPAL CORPORATIONS-INVALID STREET ASSESSMENT-BENEFIT TO LOTS.-If a statute provides that if. for any reason, recovery for street improvement cannot be had in accordance with the assessment made on the front foot rule, it may be allowed according to the standard of benefits to the lot assessed, an abutting property owner is not required to enter into the question of benefits in order to defend against an invalid assessment under the front foot rule.

Hutcheson, Campbell & Myer, for the appellants.

Ewing & Ring, for the appellee.

689 BROWN, A. J. We omit many of the facts of this case which are immaterial in considering the questions presented to this court. The following are the material facts:

Bettie M. Hutcheson, wife of J. C. Hutcheson, owned in her separate right a block of land containing about twenty acres. fronting six hundred and forty-seven feet on the north side of the Harrisburg road and some other lots upon the said roadall lying within the limits of the city of Houston between the International & Great Northern Railroad and the corporate line of the city.

At a meeting of the city council of the city of Houston, held on August 13, 1894, the council adopted a resolution declaring that the improvement of the Harrisburg road from the International & Great Northern Railroad tracks to the city limits was a public necessity. The resolution stated the different kinds of material of which the improvement might be made, and directed that bids for the work be solicited. The third section of the resolution is in the following language: "The cost of constructing said improvements, except as to street intersections, together with the cost of collecting thereof, shall, as provided in section 24 of the charter of said city, be wholly defrayed by the owner 690 of the lot or lots, block or blocks, or tracts of land when not divided into lots or blocks abutting on said portion of said streets or avenues to be so improved, and said improvements shall be paid for in five equal annual instalments." The resolution was published as required by the provisions of the charter, and the city engineer made specifications for the work, which were approved by the city council, and, after due advertisement, the city council entered into a contract with R. C. Storrie to make the improvement ordered.

The city engineer, in accordance with the terms of the charter, made and filed a roll of ownership upon which the property of Mrs. Hutcheson was placed, and the cost of the improvement, according to the contract, was apportioned to the said property by the front foot thereof, as required by the charter to be done. The roll of ownership thus made out was filed with the secretary of the city, who gave notice of its filing, as required by the charter, and there being no objection presented on the part of Mrs. Hutcheson, it was approved by the council and improvement certificates were ordered to be issued to R. C. Storrie for the cost of the work, when approved by the board of public works. R. C. Storrie did the work according to the contract, and the improvement certificates were issued, and delivered to